OIG Updates Exclusion Advisory
On May 8, 2013 the Office of Inspector General (OIG) issued a Special Advisory Bulletin that updates the scope and effect of the legal prohibition on payment by federal health care programs for items or services both furnished by an excluded person and at the medical direction of an excluded person. The Advisory Bulletin describes how statutory amendments made since the most recent Advisory in 1999 have expanded OIG’s authority to exclude individuals and entities from federal health care programs. It also explains how exclusions may be violated as well as the administrative sanctions that the OIG can pursue. The Special Advisory Bulletin also includes recommendations about the scope and frequency of screenings. Of particular interest to home health and hospice providers is guidance about the need to screen volunteers for exclusion.
The guidance explains that payment prohibition applies to all methods of federal health care program payment, regardless of if the payment comes from itemized claims, cost reports, fee schedules, capitated payments, a prospective payment system or other bundled payment, or another payment system. Payment prohibitions apply even if the payment is made to a state agency or to a person that is not excluded and includes items and services beyond direct patient care. The bulletin also explains how excluded persons are prohibited from furnishing administrative and management services that are payable by the federal health care programs even though these services are not separately billable. Examples given of such services include health information technology services, strategic planning, billing and accounting, staff training, and human resources.
Civil money penalties (CMP) of $10,000 can be imposed against both the excluded individual and a health care provider that arranges or contracts with a person the provider knows - or should know - is excluded for each claimed item or service furnished. Additionally, the person and health care provider may be subject to an assessment of up to three times the amount claimed for each item or service.
OIG explains that these penalties may be imposed even if the excluded person does not receive payments from the provider for his or her services, such as a volunteer.
OIG directs providers to its List of Excluded Individuals and Entities (LEIE), which is maintained on the OIG Web site here to access OIG program exclusion information. Absent any regulation requiring providers to check the LEIE list, OIG recommends that providers check it prior to employing or contracting with an individual and recheck periodically, such as once a month as States have been directed to do by the Centers for Medicare & Medicaid Services (CMS).
In deciding which persons should be screened against the LEIE, OIG advises providers to review each job category or contractual relationship to determine whether the item or service being provided is payable by a federal health care program. When federal health care programs do not pay for any of the items or services being provided by an excluded individual, then a provider may employ or contract with an excluded person to provide these non-Federal health care program items and service.
Of great importance to home health and hospice providers is inclusion of new information about the application of exclusion prohibitions to volunteers.
The new volunteer prohibition guidance points to the need to screen not only employees and contractors but also to screen any volunteer that provides direct service as well as those that serve in an advisory capacity, such as on professional advisory committees and boards of directors. The Special Advisory Bulletin on the Effect of Exclusion from Participation in Federal Health Care Programscan be accessed here.